Declaratory judgment defendant, third-party
and counterclaim plaintiff Urantia Foundation appeals the district court's denial
of its renewed motion for judgment as a matter of law and its alternative motion
for a new trial. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

Urantia Foundation is a charitable
trust formed under Illinois law. Michael Foundation is a non-profit corporation
organized under Oklahoma law. This appeal arises out of the parties' dispute
as to the present validity of Urantia Foundation's copyright in The Urantia
Book, a document comprising the scriptural basis for the Urantia movement.
The history of the composition of The Urantia Book, or such of that
history as is available, bears directly upon the resolution of this case.

In approximately 1900, an unknown
patient ("the Conduit") sought psychiatric help from Dr. William Sadler.(1) The Conduit behaved strangely in his sleep, and
during sessions with the Conduit, Dr. Sadler became convinced that the Conduit
was channeling "celestial personalities." At some point, the Conduit began presenting
Dr. Sadler with handwritten "papers," purportedly consisting of the fruits of
his communion with these celestial beings. Sometime later in the course of his
treatment, Dr. Sadler opened up his sessions with the Conduit to a group of
relatives that referred to itself as "The Contact Commission." During its sessions
with the Conduit, the Contact Commission prepared stenographic notes of the
Conduit's celestial dialogs, but it destroyed most of them. The notes formed
no part of The Urantia Book.

In 1924, after approximately twenty
years of treatment and generating "papers," the Conduit announced that he would
compose The Urantia Book. He solicited questions from the Contact Commission
to present to the celestial beings during his psychiatric sessions. Dr. Sadler
formed a subgroup of the Contact Commission ("the Forum") to prepare these questions.
Between 1935 and 1942, in response to these questions, the Conduit delivered
a foreword and 196 handwritten "papers" that together constitute The Urantia
Book. The Contact Commission reviewed the papers and typed them. It did
not change their arrangement or edit them in any way other than to correct spelling
and capitalization errors. It also destroyed all documents related to the questions
presented to the Conduit. The Conduit was never compensated for his efforts
in creating The Urantia Book.

In 1950, Urantia Foundation was
formed in Illinois as a charitable trust. In 1955, the Conduit permitted The
Urantia Book to be published, and later the same year Urantia Foundation
published The Urantia Book under notice of copyright. Urantia Foundation
registered its copyright in 1956 and currently holds the original and the 1983
renewal certificates as The Urantia Book's "author." In 1999, Michael
Foundation, a non-profit corporation chaired by third-party defendant and appellee
Harry McMullan III, himself a disaffected former adherent of the Urantia movement,
published Jesus--A New Revelation, which reprints verbatim seventy-six
of the 196 papers constituting The Urantia Book.

This litigation commenced when Michael
Foundation and McMullan filed a declaratory judgment action seeking a declaration
that Urantia Foundation's copyright in The Urantia Book was invalid
or, in the alternative, that their book did not infringe upon Urantia Foundation's
copyright. Urantia Foundation asserted numerous counterclaims against Michael
Foundation and third party claims against McMullan; it moved for summary judgment
as to, inter alia, the validity of its renewal copyright in The
Urantia Book. The district court denied its motion, and the case proceeded
to trial before a jury. At the close of evidence, the parties moved for judgment
as a matter of law. The district court denied all such motions, and the jury
returned a verdict in favor of Michael Foundation and McMullan. Urantia Foundation
renewed its motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b); it moved in the alternative for a new trial, asserting that
the district court abused its discretion in excluding certain testimony. The
district court denied both motions, and Urantia Foundation brought this appeal.

II. Discussion

A. The District Court's Denial of
Urantia Foundation's Renewed Motion for Judgment as a Matter of Law

Classification of Works for
Copyright Purposes

Urantia Foundation first registered
its copyright in The Urantia Book in 1956. The continued validity of its
copyright depends upon whether it effectively renewed that copyright in 1983.
Under the governing renewal provisions, as a general rule, only the author or
the author's heirs could renew the copyright in a literary work at the expiration
of the initial term, regardless of whether the author had conveyed those rights
for the duration of the initial term. 17 U.S.C. § 304(a)(1)(C).(2) The parties agree that neither the Conduit nor his
heirs renewed the copyright in The Urantia Book. Urantia Foundation
advances two theories to support its claim that it holds valid renewal rights
in The Urantia Book under exceptions to the general rule: first, that
The Urantia Book is a composite of discrete, individual works by the
Conduit, rather than a unified work, and that Urantia Foundation, as proprietor
of the copyright in that composite,(3) was entitled to renew the copyright in both the
compilation and in the underlying works; and second, that The Urantia Book
is a commissioned work because Urantia Foundation's predecessor in interest
specially commissioned the Conduit to write The Urantia Book, entitling
Urantia Foundation to renew its copyright as The Urantia Book's "author"
under a judicially created corollary to a statutory exception governing works
created for hire.(4) We consider each theory in turn.

Under the governing statute, if
The Urantia Book is classified as a unified work by a single author,
then Urantia Foundation cannot currently hold a valid renewal copyright because
renewal rights in such works were not assignable until they vested, and the
Conduit was dead by 1983. Thus, if The Urantia Book is a unified work,
copyright transferred by operation of law to the Conduit's heirs in 1983, and
they are the only persons who could have renewed or assigned it to Urantia Foundation.
Because they did not renew the copyright, if The Urantia Book is a
unified work, it now resides in the public domain.

If, however, The Urantia Book
is a composite work, then Urantia Foundation's renewal copyright in The
Urantia Book is valid. Urantia Foundation is the proprietor of the copyright
in The Urantia Book and, under the governing statute, the proprietor
of a copyright in a composite work may renew its copyright in both the compilation
and the individual underlying works. 17 U.S.C. § 304(a)(1)(B)(i). The district
court held on summary judgment that Urantia Foundation is the proprietor of
the copyright, and Michael Foundation does not challenge that holding. Thus,
if The Urantia Book is a composite work and the Conduit is its author,
Urantia Foundation owns the copyright in both the arrangement of the works in
the composite and in the underlying works themselves, because the Conduit transferred
his rights to Dr. Sadler, who then transferred them to Urantia Foundation in
a deed of trust.

The alternative exception under
which Urantia Foundation asserts the validity of its renewal copyright in The
Urantia Book invokes the "commissioned works doctrine." Under this judicially
created doctrine, the nature of the book itself is not at issue; the focus instead
is upon the relationship between the Contact Commission and the Conduit and
the circumstances of the work's creation. If, under the test developed by the
caselaw,(5) the Contact Commission specially commissioned The
Urantia Book from the Conduit, then Urantia Foundation ­ as the Contact
Commission's successor in interest ­ was entitled to renew its copyright
in 1983 as its proprietor. 17 U.S.C. § 24 (repealed); 17 U.S.C. 304(a)(1)(B)(ii).

The facts Urantia Foundation must
prove to support these alternative arguments are as follows:

Composite work argument:

The Conduit composed The Urantia
Book, then assigned his interest in it to Urantia Foundation's predecessor
in interest prior to The Urantia Book's publication in 1955, making
Urantia Foundation the proprietor of the rights in The Urantia Book,
and

The Urantia Book is a composite
work, entitling Urantia Foundation to renew its copyright in 1983 under
the proprietor exception to the usual renewal provisions.

Commissioned work argument:

The Contact Commission was the "author"
of The Urantia Book because it specially commissioned the Conduit to
write it, making The Urantia Book a commissioned work under
a judicially created doctrine parallel to the work for hire provisions of the
1909 Act, and

Urantia Foundation, as the Contact
Commission's predecessor in interest, qualifies as the Conduit's employer, entitling
it to renew The Urantia Book as a work for hire in 1983.(6)

Urantia Foundation secured a jury
instruction in its favor as to the first proposition (i.e., that it is the proprietor
of the copyright in The Urantia Book). The district court submitted
the remaining three propositions to the jury, which found against Urantia Foundation
in each case.

Standard of Review

Urantia Foundation argues, as a
preliminary matter, that the question of initial classification of works for
copyright purposes is a question of law for the court and that the district
court therefore erred when it submitted the question to the jury. Had Urantia
Foundation preserved this argument for appeal, and were the classification question
actually settled in its favor, Urantia Foundation would be entitled to a de
novo review on the question of whether The Urantia Book is a commissioned
or a composite work, rather than the more deferential standard appropriate to
review of a district court's denial of a renewed motion for judgment as a matter
of law. Urantia Foundation has, however, waived any such argument, and we therefore
need not reach the unsettled question of whether initial classification of works
is, in all cases, a question of law for the court.

In the district court, Urantia Foundation's
attorneys drafted proposed jury instructions and participated in a conference
at which the parties agreed with the court upon--or preserved objections to--the
jury instructions. They were present when the district court read the instructions
to the jury. At none of these points did Urantia Foundation object to the submission
of the classification question to the jury. The portion of the transcript of
the instructions conference relevant to "Instruction Number 23, Work for Hire/Commissioned
Work" suggests just the opposite; Urantia Foundation's counsel clearly contemplated
submission of the question to the jury. The same is true of portion of the transcript
relevant to "Instruction Number 26, Composite Definition."

Urantia Foundation's oral Rule 50(a)
motion at the close of evidence for judgment as a matter of law did not mention
the issue.(7) We find Urantia Foundation's only allusion to this
argument below in its brief in support of its Rule 50(b) renewed motion: a single,
undeveloped sentence in the brief reads, "Whether The Urantia Book is
a commissioned work is a question of law subject to de novo review." This sentence
serves--confusingly--as the topic sentence of a paragraph attacking the sufficiency
of the evidence submitted to the jury, not the propriety of submitting the question
to the jury in the first place. Neither Michael Foundation nor the district
court appear to have responded to this sentence, or, indeed, to have in any
way discerned the question-of-law argument.

We have consistently held that a
movant's renewed motion under Rule 50(b) may not advance new legal arguments;
i.e., the renewed motion's scope is restricted to issues developed in the initial
motion. Our decision in Vanderhurst v. Colorado Mountain College District,
208 F.3d 908 (10th Cir. 2000), is instructive. In that case, following a jury
trial at which the movant did not object to the submission of an issue to the
jury, the movant sought on appeal to argue that the issue was properly one of
law for the court alone. We declined to consider the argument, and stated that

This court generally will not entertain
arguments on appeal which the appellant failed to raise before the district
court.More specifically, "[a Rule 50] motion for judgment as a matter
of law made at the close of all the evidence preserves for review only those
grounds specified at the time, and no others." Finally, Rule 51 of the Federal
Rules of Civil Procedure states, "No party may assign as error the giving or
the failure to give an instruction unless that party objects thereto before
the jury retires to consider its verdict, stating distinctly the matter objected
to and the grounds of the objection."

Id. at 915 (citations omitted).

Given its failure to raise the argument
at trial, Urantia Foundation's lengthy briefing of the issue on appeal is unavailing.
Urantia Foundation participated below in all phases of a jury trial and never
objected to the submission of the classification question to the jury. It may
not at this late date attempt to avoid the deferential standard appropriate
to our review of a district court's denial of a jnov motion.

The standard of review for denial
of a renewed motion for judgment as a matter of law in a jury trial contesting
the validity of a copyright is clear:

We review the district court's denial
of a renewal motion for judgment as a matter of law de novo, applying the same
standards as the district court. We must affirm if, viewing the record in the
light most favorable to [the nonmoving party], there is evidence upon which
the jury could properly return a verdict for [the nonmoving party]. We do not
weigh the evidence, pass on the credibility of the witnesses, or substitute
our conclusions for that [sic] of the jury. However, we must enter judgment
as a matter of law in favor of the moving party if "there is no legally sufficient
evidentiary basis . . . with respect to a claim or defense . . . under the controlling
law."

We proceed, under the standard articulated
supra, to consider whether the record contains evidence upon which
a reasonable jury could have concluded that The Urantia Book is not
a composite work. Any such evidence terminates our inquiry in favor of Michael
Foundation, the non-moving party.

The term "composite work" appears
in, but is not defined by, the 1909 Act. Composites are related, however, to
"compilations," which the Act does define. Compilations are works "formed by
the collection and assembling of pre-existing materials or of data that are
selected, coordinated, or arranged in such a way that the resulting work as
a whole constitutes an original work of authorship." 17 U.S.C. § 101. The leading
treatise on copyright law defines the composite category as a subcategory of
compilations, but distinct from compilations in that each individual work within
a composite must be independently copyrightable, whereas there is no such requirement
for a compilation. Nimmer on Copyright, § 3.02. Individual works
in a compilation need not come from the same author, as long as they are discrete,
independent works. Examples of compilations include periodicals, catalogs, and
encyclopedias. Under both the 1909 Act and the 1976 Act, the proprietor of a
"periodical, cyclopedic, or other composite work" is entitled to renew the copyright
it originally obtained in the work. 17 U.S.C. § 24 (repealed); 17 U.S.C. § 304(a)(1)(B)(i).

Urantia Foundation advances four
arguments in support of its contention that The Urantia Book is a composite
work as a matter of law: (1) The Urantia Book is a composite work per
se because it is a collection of 196 separate, individually titled papers on
a wide variety of topics, most of which the Conduit wrote and delivered separately
to the Contact Commission;(8) (2) because the question of whether The Urantia
Book is a composite work is one of law for the court and The Urantia
Book was in evidence, this court should disregard the jury's verdict, examine
the 2097 pages of The Urantia Book itself, and hold as a matter of
law that it is a composite work; (3) if the question of whether The Urantia
Book is a composite work was properly one of fact for the jury, McMullan's
testimony should not determine the outcome because he was an accused infringer;
and (4) the district court improperly instructed the jury that, when the works
of a single author are collected together, the intent of the author determines
whether a composite or a unified work results.

In response to the first assertion,
Michael Foundation argues that the evidence indicates that The Urantia Book
is, in fact, a unified literary work by a single author and not a compilation
of works selected and arranged by a third party.(9) For example, the jury heard evidence that the Contact
Commission did not select or arrange the papers that comprise The Urantia
Book, but published them precisely as the Conduit presented them. The Conduit
also announced, before writing the papers that eventually became The Urantia
Book, that he would create a book, not a series of separate papers. The
jury also heard evidence that, while the individual papers bear separate titles,
they are not distinct, unrelated works but chapters of The Urantia Book,
which the Conduit intended to constitute a unified work. Such evidence satisfies
the deferential standard of review applicable to this argument.

We addressed Urantia Foundation's
second argument in our discussion of the appropriate standard of review and
need not repeat that discussion here. We disagree with Urantia Foundation's
third proposition. Its contention that the testimony of McMullan--the person
it has sued for infringement--may not be allowed to "determine" the outcome
of this case is without merit. The jury was free to consider McMullan's testimony
and give it whatever weight it found appropriate; that is the jury's function.
Moreover, the jury heard a great deal of testimony, and there is no reason to
believe that McMullan's testimony "determined" the outcome. Finally, Urantia
Foundation objected to none of the testimony below; thus, if there is an argument
to be made here Urantia Foundation has waived it. Fed. R. Evid. 103(a)(1).

Finally, Urantia Foundation argues
that the district court improperly instructed the jury that where a single author's
works are compiled, that author's intent determines whether the work is unified
or a composite.(10) Urantia Foundation properly preserved this objection
below, though it failed to provide this court with a citation to the portion
of the record containing its objection. An erroneous jury instruction mandates
reversal: (1) if we have "substantial doubt whether the instructions, considered
as a whole, properly guided the jury in its deliberations," Morrison Knudsen
Corp. v. Fireman's Fund Ins. Co., 175 F.3d 1221, 1235 (10th Cir. 1999)
(quotation omitted); or (2) "when a deficient jury instruction is prejudicial,"
i.e., where the jury might have based its verdict on the allegedly defective
instruction. Coleman v. B-G Maint. Mgmt. of Colo., Inc, 108 F.3d 1199,
1202 (10th Cir. 1997).(11)

It is not clear whether an author's
intent determines the classification of a book comprised exclusively of his
own work. The statute and the caselaw are silent on the question. Michael Foundation
argues--by analogy to the settled distinction between joint works and collective
works, which is based upon authorial intent--that intent is, or at
least should be, the controlling factor.(12) Because the question appears to be unsettled,
we cannot, without settling the question ourselves, say that the district court's
articulation of the standard in its jury instruction is erroneous.(13) We need not reach this question, because even
if the instruction overstated the importance of authorial intent, we find no
grounds therein for reversal. "We review jury instructions de novo, and must
view the instructions in their entirety, deciding not whether the instruction
was completely faultless, but whether the jury was misled in any way. Thus,
'[w]here a jury instruction is legally erroneous, we must reverse if the jury
might have based its verdict on the erroneously given instruction."
Coleman, 108 F.3d at 1202 (citation omitted) (emphasis added). We have
reviewed the jury instructions in their entirety and find that, taken as a whole,
they properly guided the jury. Id.; Morrison Knudsen, 175 F.3d at 1235.
Especially in light of (1) the fact that the Conduit, being dead, did not testify
as to his intentions, leaving the details of those intentions part of the murky
history of the composition of The Urantia Book, and (2) the fact that
the book itself was, as Urantia Foundation points out, in evidence, we see no
reason whatsoever to believe that the jury based its verdict on the
possibly erroneous instruction. See Coleman, 108 F.3d at 1202.

The dispositive fact is, simply,
that ample evidence was presented to the jury to support its determination that
The Urantia Book is not a composite work. Viewing the evidence in the
record, as we must, in the light most favorable to Michael Foundation, we hold
that the district court properly denied Urantia Foundation's renewed motion
for judgment as a matter of law.

4. Commissioned Work

Urantia Foundation alternatively
argues that The Urantia Book is a commissioned work. If this is so,
Urantia Foundation's 1983 renewal as proprietor of the copyright is valid. The
1909 Act did not contemplate "commissioned works." The Act did provide that
"in the case of . . . any work copyrighted by . . . an employer for
whom such work is made for hire, the proprietor of such copyright shall be entitled
to a renewal and extension of the copyright in such work." 17 U.S.C. § 24 (repealed);
17 U.S.C. § 304(a)(1)(B)(ii) (emphasis added). Urantia Foundation does not argue
that a traditional employment relationship existed between the Contact Commission
and the Conduit; rather, it argues that the Contact Commission specially commissioned
The Urantia Book from the Conduit.

The commissioned works doctrine
began as a judicially created stopgap, applying the 1909 Act's provisions regarding
works created for hire in traditional employer-employee relationships to those
created on commission in independent contractor relationships. While the 1976
Act codifies this judicially created doctrine, 17 U.S.C. § 101, the 1909 Act
applies to the relationship at issue in this case. Thus, in order to prove a
commissioning relationship existed such that Urantia Foundation's 1983 renewal
was valid, Urantia Foundation must satisfy the test developed by the relevant
caselaw.(14)

Aside from its question-of-law argument,
which we have discussed and rejected supra,(15) Urantia Foundation advances three main arguments
in support of its contention that the district court erred when it refused to
hold as a matter of law that the Contact Commission specially commissioned The
Urantia Book from the Conduit. We address first Urantia Foundation's belated
argument that "the district court's order is . . . based on the erroneous premise
that a commissioning party must establish that it had the right to control the
content of a work in order for the work to qualify as a commissioned work."
Urantia Foundation neglects to mention that it drafted the language upon which
the district court relied. For obvious reasons, Urantia Foundation did not object
to the instruction below; it has consequentially waived the argument on appeal.
Urantia Foundation's disingenuous challenge to its own jury instruction is without
merit.

Urantia Foundation next argues that
the evidence presented to the jury mandates judgment as a matter of law as to
the existence of a commissioning relationship under the "instance and expense"
test. We need not resolve the parties' dispute as to whether the proper test
includes factors beyond instance and expense. Even under the two-prong test
Urantia Foundation urges us to adopt, Urantia Foundation's argument is without
merit. Urantia Foundation argues that the "instance" prong is met because the
Contact Commission, its predecessor in interest, "solicited, formulated, selected,
and submitted questions" to the Conduit and "supervised hundreds of sessions
with" the Conduit. The Urantia Papers arose, however, out of the Conduit's psychiatric
sessions with Dr. Sadler. The sessions occurred at the Conduit's instance, not
Dr. Sadler's. As Michael Foundation correctly points out, in the doctor-patient
relationship, the doctor is the patient's fiduciary, not the other way around.
Furthermore, the Conduit began writing the Urantia Papers on his own initiative,
and "announced to the contact group the plan to initiate the Urantia Papers"
after having delivered papers of celestial origin to Dr. Sadler for twenty years.(16) The Conduit himself requested the questions from
the Contact Commission. The Supreme Court has indicated that the test for whether
a work is commissioned applies "at the time the commission is accepted." Community
for Creative Care Non-Violence v. Reid, 490 U.S. 730, 741 (1989) (discussing
general principles of agency law while construing section 101 of the 1976 Act).
Upon review of the record, we agree that the Contact Commission's role in creating
The Urantia Book was "little more than a reaction to an already ongoing
process of creation."(17)

Urantia Foundation argues that the
"expense" prong is met because of costs incurred in providing stenographic materials,
typing the Conduit's handwritten manuscripts, correcting spelling and capitalization
errors, and financing the later publication of The Urantia Book. But
the Conduit produced the papers that comprise The Urantia Book alone,
in longhand, and one witness testified that the Contact Commission received
the information at the Conduit's home. Michael Foundation argues that, "[d]istilled
to its essence, Urantia Foundation's argument is that because it acted as publisher
of the work and defrayed all expenses in that capacity, the work itself is transmogrified
ex ante into something produced on commission." We agree that such
a view would render most published works "commissioned."

Finally, Urantia Foundation argues
that (1) its 1983 renewal certificate, which lists The Urantia Book
as a "work for hire" and Urantia Foundation as "author," creates a rebuttable
presumption that The Urantia Book is a commissioned work, and (2) Michael
Foundation failed to rebut the presumption.(18) For several reasons, we disagree. First, as we
noted above, the "specially commissioned work" doctrine is a creation of courts
extending the 1909 Act's "work for hire" provisions to independent contractor
relationships. Because federal courts did not apply the work for hire doctrine
to commissioned works until after 1965, Urantia Foundation cannot have claimed
the work as a commissioned work when it filed its original certificate in 1956.
See Reid, 490 U.S. at 749 (citation omitted). The certificate cannot
be prima facie evidence of a relationship embodied in a common law doctrine
not yet created by the courts. Second, the jury's determination, supported by
ample evidence, that no commissioning relationship existed, does rebut the presumption.(19)

In short, under the appropriately
deferential standard of review, there is ample evidence in the record to support
the jury's determination that no commissioning relationship existed between
the Conduit and the Contact Commission. The district court, therefore, did not
commit reversible error when it denied Urantia Foundation's renewed motion for
judgment as a matter of law on the question of whether its predecessor in interest
commissioned the Conduit to create The Urantia Book.

Urantia Foundation moved below for
a new trial based upon the district court's exclusion of Barbara Newsom's testimony
on grounds of unfair surprise. The district court denied the motion, and Urantia
Foundation on appeal asserts that this was error requiring us to remand the
case to the district court for a new trial. We review the denial of a motion
for a new trial for a manifest abuse of discretion. Aguinaga v. United Food
& Commercial Workers Int'l Union, 993 F.2d 1463 (10th Cir. 1993), cert.
denied, 510 U.S. 1072 (1994).

Urantia Foundation proffered testimony
from Newsom that the Conduit "was aware of the Urantia Papers, knew of the Contact
Commission's intent to publish them, and disclaimed any copyright in the papers."
Newsom's testimony would have been based upon secret journals purportedly prepared
by Dr. Sadler and kept in a locked file cabinet until their unexplained disappearance
in 1979. Newsom would have testified that she examined the journals twenty years
earlier while researching a history that she was writing about the Urantia movement.
The district court excluded the evidence on the ground that it would unfairly
surprise Michael Foundation. Michael Foundation contends that the admission
of the secret journals would have been prejudicial to it because the Joint Pre-trial
Report did not adequately prepare it for the testimony, which Urantia Foundation
offered four and one-half days into trial, after Michael Foundation had rested.

We agree. Urantia Foundation's contention
that Michael Foundation would not have been unfairly surprised seems disingenuous,
given that Urantia Foundation's own counsel claimed ignorance of Newsom's potential
testimony as to the purported secret journals until the Friday night before
the Monday morning on which Urantia Foundation offered her testimony. Urantia
Foundation points to the Final Joint Pre-trial Report, which indicated that
Newsom would testify "as to the matter in which 'The 50 Years' anniversary document
was prepared, matters relating to the origin of The Urantia Book."
Urantia Foundation asserted that this adequately prepared Michael Foundation
for Newsom's testimony. But that report was prepared before even Urantia Foundation's
own counsel knew of the existence of the purported secret journals; given the
particular nature of the proffered testimony, it therefore appears likely that
Michael Foundation did not receive adequate notice.

Exclusion of evidence at trial is
within the sound discretion of the trial court; thus "an evidentiary ruling
will be reversed only on a showing that the trial court abused its discretion."
Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1456 (10th Cir. 1990) (citation
omitted). Newsom's testimony was announced well into the trial, after Michael
Foundation had rested. It concerned the contents of purported secret journals,
purportedly kept in locked filing cabinets, until their purported mysterious
disappearance over twenty years ago, and purportedly contained evidence highly
injurious to Michael Foundation's case. Suffice it to say that we do not find
the district court's exclusion of Newsom's testimony to have been an abuse of
its broad discretion.

III. Conclusion

Viewing the evidence in the light
most favorable to Michael Foundation, we find that substantial evidence supports
the jury's determination that The Urantia Book is neither a composite
nor a commissioned work. We therefore AFFIRM the district court's denial of
Urantia Foundation's renewed motion for judgment as a matter of law. Because
the trial court did not abuse its broad discretion in excluding, on grounds
of unfair surprise, the testimony of Barbara Newsom as to the contents of purported
secret journals, we AFFIRM the district court's denial of Urantia Foundation's
motion for a new trial.

ENTERED FOR THE COURT,

Deanell Reece Tacha

Chief Circuit Judge

McWILLIAMS, Senior Circuit
Judge, dissenting.

In my view, the district court erred
in denying Urantia Foundation's motion for judgment, n.o.v. I hold that the
Urantia Foundation's renewal copyright is valid and enforceable as a matter
of law. See Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir.
1997).

FOOTNOTESClick footnote number to return to corresponding location in the
text.

*.This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and collateral estoppel.
This court generally disfavors the citation of orders and judgments; nevertheless,
an order and judgment may be cited under the terms and conditions of 10th Cir.
R. 36.3.

2.The Honorable Ruggero J. Aldisert, Senior Circuit Judge,
United States Court of Appeals for the Third Circuit, sitting by designation.

1. No one knows who the Conduit was, but the parties
agree that he composed the text of The Urantia Book. Throughout its
briefs, Urantia Foundation refers to him as "the subject"; Michael Foundation
refers to him as "Writer." Given that the terms the parties have selected to
refer to the composer of The Urantia Book carry overtones suggestive
of the principles of copyright law underlying this case, and that his status
as a conduit for celestial revelation is not in dispute, we refer to him by
what we hope to be a copyright-neutral term.

2. While the relationship between the Conduit and the
Contact Commission is defined by provisions of the 1909 Act and relevant caselaw,
renewal of subsisting copyrights still in their first term as of 1978 (e.g.,
Urantia Foundation's copyright in The Urantia Book) is presently governed
by section 304 of the 1976 Act, as amended. 17 U.S.C. § 304.

3. "Proprietor" in this context refers to the entity
under whose copyright the work is published; the term is distinct from author,
which refers to the actual creator of the work.

4. We note that these two arguments are mutually exclusive;
if the Conduit was the author, as the first theory requires, then Urantia Foundation's
predecessor in interest could not be the author, as the second requires.

7. In fact, in the course of his oral motion, Urantia
Foundation's attorney stated, "As to the unified nature of the work, I think
there's certainly a fact issue for the jury to decide on that at a minimum."

8. In support of this argument, Urantia Foundation cites
Urantia Foundation v. Maaherra, 114 F.3d 955 (9th Cir. 1997), and argues
that this court should, in the interests of "principled and intelligible" development
of copyright law, follow the Ninth Circuit's lead and hold that The Urantia
Book is a composite work. We note, however, that the Maaherra
court's focus was not on the specific question of whether The Urantia Book
was or was not a composite work; rather, it was on whether Urantia Foundation's
erroneous description of itself as the "owner of a work for hire" rather than
the "proprietor of a composite work" on its 1983 renewal certificate automatically
invalidated the renewal.

9. While composite works typically contain works by
multiple authors, we need not reach the parties' debate over whether a work
by a single author can be a composite work. The record need only contain evidence
sufficient to permit a rational jury to have found that The Urantia Book
was not a composite work; and, as it does, our inquiry is complete.

10. Urantia Foundation also argues that the composite
definition instruction was "imbalanced." Urantia Foundation claims to have raised
this objection below, but provides no supporting citation to the record. Even
if properly preserved, however, we decline to consider this argument, as Urantia
Foundation raises the issue outside of its enumerated issues on appeal and relegates
discussion of it to a footnote late in the brief. United Transp. Union v.
Dole, 797 F.2d 823, 827 (10th Cir. 1986) (failure to develop arguments
thoroughly in a brief generally waives the argument).

11. Urantia Foundation does not request reversal; rather,
it incorporates its challenge to the jury instruction into its argument that
initial classification is a matter of law for the court. Because we disagree
with Urantia Foundation on the classification question, we consider its challenge
in the usual manner, i.e., as a request for a reversal.

12. In support of its assertion that authorial intent
governs, Michael Foundation cites (1) the statute, 17 U.S.C. § 101 (defining
"joint work" as one "prepared by two or more authors with the intention
that their contributions be merged into inseparable or interdependent parts
of a unitary whole"); (2) legislative history, H.R. Rep. No. 1476, 94th Cong.,
2d Sess. 120 (1976) ("The touchstone [for distinguishing between joint works
and collective works] is the intention, at the time the writing is
done, that the parts be absorbed or combined into an integrated unit . . . .");
and (3) Nimmer on Copyright § 6.05 ("What distinguishes a collective
work from a joint work based upon interdependent parts? The distinction lies
in the intent of each author at the time his contribution is written.")
(emphases added). Michael Foundation insists that this question is logically
solved by analogy to the settled distinction between joint and collective works--i.e.,
that it would be "perverse to allow two authors to decide for themselves whether
their separate contributions were merged into a [unified] work . . . but deny
a single author the right to make that decision." While we appreciate the logical
appeal of this analogy, no court has so held; and as sufficient evidence supports
the jury's conclusion that The Urantia Book is not a composite, we
need not reach the question.

Keep in mind that where the works
of only one author are involved, the intent of the author is controlling. If
the subject authored separate and independent works, each of which was intended
to exist on a stand alone basis, and if the Urantia Foundation or its predecessors
then assembled those independent works in an order of its own choosing into
one collective work that it published as The Urantia Book, then The Urantia
Book can be a composite work. By contrast, if the subject intended to author
related pieces at different times which the Urantia Foundation or its predecessor
published wholesale as The Urantia Book, then The Urantia Book cannot be a composite
work.

14. As our discussion infra indicates, the
parties disagree as to precisely what that test is. Urantia Foundation argues
that the test includes only "instance" and "expense" prongs, while Michael Foundation
argues that an additional prong requires that the commissioning party have the
right to control the content of the work itself.

16. The Conduit announced these plans on behalf of,
or "as," Machiventa Melchizedek, one of the celestial personalities constituting
the "Revelatory Commission," to whom Urantia Foundation ultimately attributes
the revelations it believes The Urantia Book to embody.

17. The cases upon which Urantia Foundation relies
fail to support its contention that supplying questions to the creator satisfies
the "instance" test.

19. Michael Foundation argues that Urantia Foundation
has waived this particular formulation of the issue by failing to request a
jury instruction as to the rebuttable presumption argument. We agree that, to
the extent that a specific instruction as to the presumption of validity would
have induced the jury to require more evidence than it otherwise would
have before finding that the Conduit did not write The Urantia Book
under commission from the Contact Commission, Urantia Foundation has obviously
waived the issue. We need not reach the details of Michael Foundation's waiver
argument, however, as the presumption was amply rebutted by: (1) the logical
impossibility of the certificate creating a presumption in favor of a relationship
not recognized by the law when the certificate was recorded; and (2) more importantly,
the jury's finding, supported by adequate evidence, that no commissioning relationship
existed.